DHS Announces Limited H-2B Cap-Relief

The Departments of Homeland Security and Labor have published a final rule increasing the cap on H-2B non-immigrant visas by up to 15,000 additional visas through the end of fiscal year (FY) 2017. The cap-relief visas will be available only to American businesses which attest that they will likely suffer irreparable harm without the ability to employ all the H-2B workers requested in their petition. They will begin accepting applications July 19.

To be eligible for the visa, applicants must meet all existing H-2B petition requirements, conduct a new round of recruitment to ensure local labor is still unavailable, and file a new “attestation” form that affirms, under penalty of perjury, its business will likely suffer “irreparable harm” if it cannot hire all the requested H-2B workers before the end of the fiscal year. In addition, seasonal business owners must retain evidence and records proving compliance with the rule and “demonstrate that their business is likely to suffer irreparable harm if they are unable to employ all the H-2B workers requested in their petition for 3 years. Petitioners must provide the documentation if DHS or DOL requests it.”

NALP met with DHS representatives shortly after the new rule was announced and expressed our disappointment that the cap-relief comes so late in the season that it is most likely too little and too late to impact the needs of landscape companies, the single largest user of H-2B services. We also expressed concern that the new attestation requirement is punitive and difficult to meet because it is exceedingly difficult if not impossible to predict whether “irreparable harm” carries into the future.

NALP and other H-2B Workforce Coalition partners are committed in our pursuit of much needed – and permanent – H-2B reform. We will continue to work with our H-2B Congressional champions to educate members of Congress and the administration on the purpose, need and impact of H-2B temporary workers to illustrate the vital role the H-2B program serves for landscape professionals and our nation’s other seasonal employers.